Cheat Sheet: A quick guide to the new FCPA guidance

On Nov. 14, 2012, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) released a guidance on the Foreign Corrupt Practices Act (FCPA). Assistant Attorney General Lanny Breuer, head of the DOJ’s Criminal Division, called the guidance “the most comprehensive effort ever undertaken by either the Justice Department or the SEC to explain our approach to enforcing a particular statute.”

In InsideCounsel’s January issue, we took a look at this guidance to see what all the fuss was about, and how in-house counsel could make the most of it.

What is this thing, anyway?

Well, we’ll tell you what it’s not—new. The guidance mostly compiles existing statements on the FCPA: the statute itself, testimony, speeches and nonprosecution or deferred prosecution agreements. But it does put all that information in one place, making it a helpful reference for in-house counsel on what the government thinks of different aspects of the FCPA, and scenarios counsel may have to face.

Why is it helpful?

One thing that is new in the guidance is a first-time look at declinations—cases the DOJ decided not to prosecute, for whatever reason, after investigation. Many of these examples involve voluntary disclosures.

“People continue to be split [on] how valuable voluntary disclosures are,” says Sheppard Mullin Partner Thaddeus McBride. “Even if there’s a declination, you may need to really scorch the earth in the form of an investigation that is directed by the government. But getting the details of the declinations is useful for companies to have.”

The guidance also goes into several hypothetical situations in detail, giving in-house counsel a reference for how the government would handle scenarios involving gifts, travel and entertainment. Travel expenses associated with training are OK, as are promotional items companies distribute at trade shows.

Just because the guide says it’s OK, does that mean I should do it?

Not necessarily. The guidance approves small, one-time facilitating payments, but according to Lisa Prager, a partner at Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, and former assistant U.S. attorney for the District of Columbia, you don’t want to go down that road.

“It’s still not wise to have [employees making] decisions in the field that could be difficult to analyze,” Prager says.

What are the drawbacks?

Unfortunately, the guidance is nonbinding. The disclaimer says it is “informal and summary in nature” and “does not in any way limit the enforcement intentions or litigating positions” of the government. Notice-and-comment rulemaking would have been more helpful for in-house counsel.

What’s more, some of the fuzzier areas of the FCPA remain fuzzy, such as the definition of an instrumentality. But we can’t necessarily blame the DOJ and SEC for the lack of clarity—according to Amar Sarwal, the chief legal strategist at the Association of Corporate Counsel, a lot of that FCPA fuzziness is legislative, and not something that could have been resolved in this guidance.